thereof or properly support such claim [or defence] at the trial thereof without his evidence.

5. [Here state shortly any particular facts relied upon as showing that the evilence of the witness is material and necessary.]

6. The said W. W. is at present residing at jurisdiction of this Honourable Court.

in

out of the

7. [Here state shortly the reasons why the witness should be examined abroad; e.g., his inability or refusal to attend the trial here, or the advantages, as regards expense, of examination abroad.]

8. There are also [as I am informed by, and verily believe] other persons, now residing at but whose names are at present unknown to me, and who, I am advised and believe, are material and necessary witnesses for [or can give material evidence for -] in this action. [Omit this paragraph if the facts do not warrant it.]

9. [If there has been any delay in making the application, a satisfactory explanation should, if possible, be here given.]

10. [If the application be by the defendant, here add] I have [or the defendant has], as I am advised [or instructed] and verily believe, a good defence to this action on the merits; and this application for a commission is made bona fide for procuring the evidence of the said W. W. [and other witnesses] and not for delay.

.11. [If the affidavit be by the party's solicitor, or his clerk having the management of the action, state the fact.]

Sworn [&c., as usual; see post, “ Affidavits ”]. This affidavit is filed [&c., as usual].

Upon hearing

3. Short Form of Order for Commission (b).

[Title, &c., as usual.]

and upon reading the affidavit of

filed the

day of, 19- [and]:

It is ordered that the [plaintiff] be at liberty to issue a commission for the examination of witnesses on [his] behalf at

And it is further ordered that the trial of this action be stayed until the return of the said commission, the usual long order to be drawn up, and unless agreed upon by the parties within one week, to be settled by the Master [or as the case may be], and that the costs of this application be [e.g., reserved].

Dated the day of

19-.

(¿) This form follows that given in R. S. C., App. K., No. 36, the use of which is prescribed, with such variations as circumstances may require, by Ord. XXXVII., r. 6.

and ———————, of ————————, commissioners (d) named by and on behalf of the for the examination upon interrogatories and vivâ voce of witnesses on behalf of the said aforesaid before the said commissioners, or any two of them, so that one commissioner only on each side be present and act at the examination.

and respectively at

and

2. Both the said shall be at liberty to examine upon interrogatories and vivâ voce upon the subject-matter thereof or arising out of the answers thereto such witnesses as may be produced on their behalf, with liberty to the other party to cross-examine the said witnesses upon cross-interrogatories and vivâ voce, the party producing the witness for examination being at liberty to re-examine him vivâ voce; and all such additional viva voce questions, whether on examination, cross-examination, or re-examination, shall be reduced into writing, and, with the answers thereto, returned with the said commission.

3. Within

of the said

days from the date of this order the solicitors or agents and shall exchange the interrogatories they propose

to administer to their respective witnesses, and shall also within days from the exchange of such interrogatories, exchange copies of the crossinterrogatories intended to be administered to the said witnesses.

4. days previously to the sending out of the said commission, the solicitor of the said - shall give to the solicitor of the said — notice in writing of the mail or other conveyance by which the commission is to be sent out.

5.

days previously to the examination of any witness on behalf of the said or respectively, notice in writing signed by any one of the commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination, and the names of the witnesses intended to be examined, shall be given. to the commissioners of the other party by delivering the notice to them personally, or by leaving it at their usual place of abode or business, and if the commissioners of that party neglect to attend pursuant to the notice, then one of the commissioners of the party on whose behalf the notice is given shall be at liberty to proceed with and take the examination of the witness or witnesses ex parte, and adjourn any meeting or meetings, or

(e) This form follows that given in R. S. C., App. K., No. 37.

(d) The names of the commissioners should be inserted (see Nicol v. Alison, 11 Q. B. 1006).

continue the same, from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, without giving any further or other notice of the subsequent meeting or meetings.

6. In the event of any witness on his examination, cross-examination, or re-examination, producing any book, document, letter, paper, or writing, and refusing, for good cause to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commissioner present to be a true and correct copy or extract shall be annexed to the witness's deposition.

7. Each witness to be examined under the commission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the said commissioners or commissioner.

8. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and vivâ voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an interpreter or interpreters, to be nominated by the commissioners or commissioner, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness or witnesses, and his and their answers thereto.

9. The depositions to be taken under and by virtue of the said commission shall be subscribed by the witness or witnesses (e), and by the commissioners or commissioner who shall have taken such depositions.

10. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified copies thereof or extracts therefrom, shall be sent to the senior Master of the Supreme Court of Judicature on or before the day of 19-, or such further or other day as may be ordered, enclosed in a cover under the seal or seals of the said commissioners or commissioner, and office copies thereof may be given in evidence on the trial of this action by and on behalf of the said and respectively, saving all just exceptions, without any other proof of the absence from this country of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the said respectively, as to his belief.

or

11. The trial of this cause is to be stayed until the return of the said commission.

12. The costs of this order, and of the commission to be issued in pursuance hereof, and of the interrogatories, cross-interrogatories, and depositions to be taken thereunder, together with any such document, copy, or extract as aforesaid, and official copies thereof, and all other costs incidental thereto, shall be

(e) This is only directory, not obligatory (Hodges v. Cobb, L. R. 2. Q. B. 652).

5. Order by Consent for reading Depositions to be taken under Commission issued in another Action.

Formal parts as usual.] By consent it is ordered that the parties to this action shall be at liberty to read and use as evidence at the trial of this action the depositions of witnesses to be taken under the commission dated, and issued in another action now pending in [this] Division of this Honourable Court between

-, plaintiff, and

defendant, and intituled 19-, -, No. —, or office copies of the said depositions, when filed in the aforesaid action, saving all just exceptions, in the same manner as if such depositions had been taken and filed under a commission issued in this action on the application of the plaintiff [or defendant] herein, without proof of the signatures of the witnesses or commissioners, and without any other proof that the said witnesses are at the time of the trial of this action absent from this country, or dead, or unable to attend such trial, than an affidavit as to his belief by the solicitor or agent of the party herein proposing to read their said depositions; and that the trial of this action be stayed until [fourteen days] after the return of the said commission.

6. Præcipe for Commission (f).

[Title, &c., as usual.]

Seal in pursuance of order dated

a writ in the nature of a

mandamus or commission to examine witnesses [or simply, a writ of

Edward the Seventh, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith: To, of missioners named by and on behalf of the and

:

of

and

of

com

and to

of

commissioners named by and on behalf of the

greeting Know ye that we in confidence of your prudence and fidelity have appointed you and by these presents give you power and authority to examine on interrogatories and vivâ voce as herein after mentioned

f) This form is given in R. S. C., App. G., No. 17.

(9) These are the words in the printed official form now in general use.

(h) This form is given in R. S. C., App. J., No. 13, and its use, with such variations as circumstances may require, is prescribed by Ord. XXXVII., r. 6.

and respectively at

before

witnesses on behalf of the said you or any two of you, so that one commissioner only on each side be present and act at the examination. And we command you as follows :— 1. Both the said and the said shall be at liberty to examine on interrogatories and vivâ voce on the subject-matter thereof or arising out of the answers thereto such witnesses as shall be produced on their behalf, with liberty to the other party to cross-examine the said witnesses on cross-interrogatories and vivâ voce, the party producing any witness for examination being at liberty to re-examine him vivà voce; and all such additional vivâ voce questions, whether on examination, cross-examination, or re-examination, shall be reduced into writing, and with the answers thereto shall be returned with the said commission.

2. Not less than days before the examination of any witness on behalf of either of the said parties, notice in writing, signed by any one of you, the commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination and the names of the witnesses to be examined, shall be given to the commissioners of the other party by delivering the notice to them, or by leaving it at their usual place of abode or business, and if the commissioners or commissioner of that party neglect to attend pursuant to the notice, then one of you, the commissioners of the party on whose behalf the notice is given, shall be at liberty to proceed with and take the examination of the witness or witnesses ex parte, and adjourn any meeting or meetings, or continue the same from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, without giving any further or other notice of the subsequent meeting or meetings.

3. In the event of any witness on his examination, cross-examination or re-examination producing any book, document, letter, paper, or writing, and refusing, for good cause to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commissioner present and acting to be a true and correct copy or extract shall be annexed to the witness's deposition.

4. Each witness to be examined under this commission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the commissioners or commissioner present at the examination.

5. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and vivâ voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an interpreter or interpreters to be nominated by the commissioners or commissioner present at the examination, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness and his answers thereto.